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Big win for land occupiers

Sep 03 2017 06:01

Dewald van Rensburg

The Marikana settlement in 2014.

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Johannesburg - A landmark judgment in the Western Cape this week could open the door to formalising South Africa’s contentious land occupation issue by having the state buy the property from whomever owns it, as an alternative to eviction.

Landowners and investors will be watching closely to see how much the state will pay and whether the case emerges as the first in a trend for how occupied land cases are resolved.

Nedbank economist Isaac Matshego said that a key issue related to the matter was the price at which the land owners would be compensated.

If the land owners suffered a loss in the compensation process, business confidence would be hurt.

“I’m not too worried about this case unless it becomes a trend,” Matshego said.

SA Property Owners’ Association CEO Neil Gopal on Friday said he was not in a position to respond until he had reviewed the judgment.

Judge Chantal Fortuin’s ruling will force the City of Cape Town to buy or expropriate a large tract of land next to the Cape Town International Airport to accommodate the 60 000 people who have occupied it.

The so-called Marikana settlement is located in the noise corridor over which planes descend to land.

The tract of about 40 hectares was undeveloped and overgrown until August 2014, when it became the site of one of South Africa’s largest land occupations to date.

While the Marikana land case has a number of unique facts, it sets a precedent that could apply to other cases where private land has been occupied by large numbers of people, said Thulani Nkosi, the attorney for the residents.

“In terms of this judgment, once a large informal settlement has established itself and has become reasonably settled, the private land owner and the municipal authority must consider the possibility of expropriation.”

This does not mean municipalities will have to buy land every time it gets occupied.

“The particulars are very important. What makes it different is that the owners were not really insisting on eviction any more.

"The problem with large informal settlements that landowners are starting to realise is that, if you evict, people just return,” said Nkosi.

The residents were represented by the Socio-Economic Rights Institute of SA, the group that is repeatedly criticised by Johannesburg mayor Herman Mashaba as being “so-called human rights lawyers” for defending occupiers of the city’s “hijacked” high rises.

The institute received “a few” requests for help from other settlements after the judgment, said Nkosi.

“It is important because it says to officials that sometimes land issues can be sorted out if people get together and talk.”

Greg Vermaak, a Johannesburg-based lawyer whose practice specialises in evictions, said the Marikana case may be unique due to the sheer size of the settlement.

“Maybe it will apply elsewhere, these scenarios are so fact-specific ... I have never heard of [an eviction involving] so many people. The interesting thing is the unique number,” he told City Press.

“This doesn’t suddenly create a rule that the authorities must always buy occupied land,” he added.

The state is legally obliged to provide temporary emergency housing whenever indigent people are evicted by private landowners.

In this case, the number of people involved makes it physically impossible for the city to provide alternative accommodation of any sort.

“There is certainly a logic to it. If there is no place to put them, this could be the solution,” said Vermaak.

No party has indicated that they will appeal the judgment yet, but Nkosi anticipates further litigation.

The city will negotiate with the three groups of landowners involved for a maximum of two months to buy the land.

Failing that, the city has to expropriate.

Haggling over the price will probably trigger an appeal, said Nkosi.

After that, another struggle will most likely ensue about whether the city is also obliged to provide basic infrastructure on the land.

“We have no illusions as to what lies ahead once the City of Cape Town has bought the land,” said Nkosi.

“We foresee another bout of litigation against the city for the upgrade of that land into proper housing units with all the necessary amenities, from roads to basic services.”

Brett Herron, the mayoral committee member for transport and urban development in Cape Town, told City Press by email that they were still studying the judgment.

“I am concerned about the implications or the potential unintended consequences,” he said.

“If this order sets a precedent that requires local governments to respond to land occupations as and when they occur by purchasing land that was not previously part of any housing plan, this will result in deviations from the plan or delays for other projects because there isn’t an infinite housing fund,” said Herron.

According to the judgment, the provincial and national government will have to provide funds to the city if the land purchase cannot be accommodated within its budget.

THE LAND

Judging by land sales in the area, the property would be worth at least R60 million.

The settlement was largely erected during the course of August 2014 after smaller occupations and evictions in the preceding year.

In court papers, landowners say that 1 000 shacks were built during that month, which is reflected in satellite photography.

. A 2 hectare portion belongs to Iris Fischer, a pensioner, who has lived there for about 50 years. She and her sons want to be bought out and asked for that in court after determining evictions don’t work and are, in any case, too expensive.

In their court papers, they note that the sheriff of the court had invoiced them R123 373 to evict 192 people and demolish 95 shacks on their part of the land. That amounted to R950 per shack and R28.50 per person.

. A 9ha portion of the land belongs to Copper Moon Trading 203, a company belonging to a pair of property developers – David Bunce and Juan Grossman.

They bought the land in 2007 and intended to develop it. Nedbank granted them a R50 million mortgage, but, by 2014, nothing had happened on the property.

In court papers, they say their development was on the cusp of taking off at the time of the land occupation.

. The largest part of Marikana belongs to a consortium involving the Power Group, which also had plans to develop a mixed-purpose commercial and residential area.

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